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October 6, 1997

CHARLES CHU as guardian of PAULA S. CHU, a minor, Plaintiff,

The opinion of the court was delivered by: INFANTE


 Defendant Allianz Life Insurance Co. ("Allianz") moves, pursuant to Rule 56, F.R.Civ.P., for summary judgment on all claims in Plaintiff's complaint. Plaintiff Chu brings a cross-motion for partial summary adjudication of his breach of contract claim. For the reasons set forth below, Allianz's Motion for Summary Judgment is GRANTED and Chu's Cross-Motion for Partial Summary Adjudication is DENIED.


 The underlying facts in this case are not in dispute. Paula Chu is a high school student at Homestead High School in Cupertino, California. As a high school student, Paula was offered the opportunity to apply for coverage under a Student Accident Health Insurance Policy (the "Policy"), No. 8598-005, underwritten and administered by Allianz. The Policy was administered by a third party administrator, Myers-Stevens & Co., Inc., who provided "descriptive materials and applications to various schools, students, and parents of students with respect to various programs of health insurance." Plaintiff's Undisputed Fact ("UF") No. 4. Prior to August 16, 1995, Charles Chu received a pamphlet entitled "Student Accident and Health Insurance." He selected the "School-Time Plans" for Paula, with a $ 50,000 maximum benefit, and paid the policy premium. UF No. 5.

 The brochure describes the "School Time Plans" as follows:

Covers injuries caused by accidents occurring:
. at school during the school day while continuously on school premises (including academic summer classroom sessions) and up to one hour immediately before and after regularly scheduled classes.
. while attending or participating in school-sponsored and directly supervised activities, including all interscholastic sports activities except tackle football.
. while traveling: (1) directly and without interruption between home and school to attend regularly scheduled classes or to participate in school activities immediately before and after classes, and (2) in any school-sponsored vehicle to or from a school-sponsored activity.
(Original Emphasis)

 The back page of the brochure sets forth a list of fifteen exclusions for all accident plans under a section labeled "exclusions for all accident plans," including one provision which excludes benefits for any treatment or loss resulting from: "10. Injury or death caused while riding in or on, entering or alighting from a two or three-wheeled motor vehicle or a motor vehicle not designed primarily for use on public streets and highways."

 The back page of the brochure also contains a section entitled "requirements & limitations for all accident plans," which states in full:

The first physicians's visit must be within 120 days after the accident and then we pay for covered expenses rendered within a year from the date of first physician's visit. For a school-related accident, the incident must be reported immediately to a school authority under the School-Time or Football Plans. For all other accidents, please contact your school or Myers-Stevens to receive a claim form which must be filed with Myers-Stevens within ninety days after the date of first treatment. Aggravations of pre-existing conditions are paid up to a $ 500 maximum. Injuries sustained as a result of riding in or on, entering into or alighting from, or being struck by a motor vehicle (see exclusions above for motor vehicles not covered under the plan) or while surfing are limited to a $ 4,000 maximum.

 On or about August 16, 1995, Chu received "Enrollment Information" and two "Student Accident ID Cards" from Myers-Stevens. The Enrollment Information stated, "Attached are two identification cards for the student enrolled for student accident coverage. The master certificate is held by the school district office. No individual policy will be sent." Chu asserts that he was not sent any other insurance information prior to Paula's accident. UF No. 9.

 On December 19, 1995, at approximately 3:08 p.m., Paula Chu was involved in a pedestrian-automobile accident when she was struck by a car as she left school for home. Paula has incurred in excess of $ 50,000 in medical bills as a result of the accident. UF Nos. 11, 12. Chu made a timely claim for benefits under the policy, but Myers-Stevens limited Chu's claim to $ 4,000 based upon the policy limitations. UF No. 13. In a letter explaining its position, Meyers-Stevens stated:

Under our school plans, losses involving motor vehicles are either excluded or are limited to $ 4,000, depending upon the nature of the motor vehicle involved. As we read together over the phone, the section in your brochure entitled Requirements and Limitations for All Accident Plans says, in part, the "injuries sustained as a result of being struck by a motor vehicle are limited to a $ 4,000 maximum. The parenthetical reference to motor vehicles which are excluded basically deals with injuries sustained while riding on two- or three-wheeled motor vehicles or off-road vehicles. This exclusion obviously does not apply to Paula's case.

 Chu did not see a copy of the "Master Certificate" until he requested, and was sent, a copy of the 16-page policy on April 29, 1996. UF No. 14. Under a section entitled "Deductible Amount-Co-Insurance Amount - Hospital and Professional Service Expense Benefit Limitations," the Master Certificate provides, "Expenses for covered injuries sustained as a result of riding in or on, entering or alighting from or being struck by a motor vehicle, or for surfing, not to exceed: $ 4,000." See, Defendant's Exhibit 2, Accident Certificate, p. 26.

 On March 6, 1997, Charles Chu, as guardian of Paula S. Chu, filed a complaint for breach of insurance contract and breach of the implied covenant of good faith and fair dealing against Allianz. Jurisdiction is ...

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